Hemm v. Commissioner of Social Security
DECISION AND ENTRY- For the above reasons, Plaintiffs challenges to the ALJs findings at step 5 of his sequential evaluation lack merit. IT IS THEREFORE ORDERED THAT: 1. The Commissioners non-disability finding is affirmed; and2. The case is terminated on the Courts docket. Signed by Magistrate Judge Sharon L. Ovington on 9/21/17. (kma)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
NANCY A. BERRYHILL,
COMMISSIONER OF THE SOCIAL
: Case No. 3:16-cv-00123
: Magistrate Judge Sharon L. Ovington
(by full consent of the parties)
DECISION AND ENTRY
Plaintiff Keith Hemm suffered a painful back injury accompanied by groin pain
while working on January 9, 2013. After receiving treatment, he unsuccessfully
attempted to work a modified job for the same employer. He has not worked since
then due, in part, to ongoing back pain. Medical testing revealed “mild degenerative
disc disease” in his lower lumbar spine and mild disc bulge at L4-L5 and a disc bulge
at L5-S1. (Doc. #6, PageID #420). Plaintiff concluded that these and other health
problems constituted one or more disabilities, making him eligible to receive
Disability Insurance Benefits from the Social Security Administration. He therefore
filed an application for such benefits asserting that his disabilities began on January 9,
The Social Security Administration—through the decision of Administrative
Law Judge (ALJ) Theodore W. Grippo—determined that Plaintiff was not under a
disability and, consequently, was not eligible to receive Disability Insurance Benefits.
Plaintiff brings the present case challenging ALJ Grippo’s non-disability
decision on the ground that he erred by rejecting the medical opinions of Family Nurse
Practitioner–Certified (FNP-C) Alissa McDivitt, FNP-C, and certified nurse
practitioner (CNP) Karmen Arnett. Plaintiff raises additional challenges based on the
ALJ’s (1) failure to prove there are a significant number of jobs available for someone
with Plaintiff’s limitations; (2) improper evaluation of Plaintiff’s credibility; and, (3)
failure to fulfill his duty to fully develop the record. Plaintiff seeks an order
remanding this matter to the Social Security Administration for payment of benefits or
for further proceedings.
The Commissioner finds no error in the ALJ’s decision and contends that
substantial evidence supports the ALJ’s findings. The Commissioner therefore asks
the Court to affirm the ALJ’s non-disability decision.
On the date Plaintiff’s asserted disabilities began, he was 43 years old. He was
therefore considered a younger person under Social Security law. He had a high
school education and worked in the past as a warehouse manager.
Before issuing his decision, ALJ Grippo held a hearing during which Plaintiff
was represented by an attorney. Plaintiff testified that he stopped working on January
9, 2013 after he “had a pop” in his back that caused pain into his groin. (Doc. #6,
PageID #76). He explained that he has degenerative spondylitis that causes him a
great deal of pain and requires him “to sit, to stand, to lie down throughout the day and
periods of 20 minutes to a half hour increments, probably.” Id. at 77. The pain is in
his lower back extends mainly into his left leg, although he was starting to feel pain in
both legs. After sitting for 20 minutes, his pain increases and is “pretty intense.” Id.
It forces him to get into another position. He lies down at least 4 times during an 8hour day. He stays lying down for 20 to 25 minutes at a time.
Plaintiff’s testified that his treatment has included 4 epidural injections.
Although the first injection helped relieve his pain for 4 to 5 days, he obtained no pain
relief from the other injections. He explained, “The treatment right now is trying to
just do these injections, and that’s basically to just give me relief of pain. It’s doing
nothing to fix any of the degeneration in my back or my discs.” Id. at 85.
Plaintiff further explained that it is “very, very difficult” for him to bend. Id.
at 80. He has problems lifting his arms above his shoulders—it increases his back
“pain tremendously.” Id. He is limited to lifting 5 pounds. Lifting more would
probably cause further injury to his back. Id. at 85.
After Plaintiff injured his back on January 9, 2013, he went to the Reid
Hospital. He was diagnosed with low back pain with radiculopathy and testicular
pain. Id. at 363. He was discharged the same day with medication and follow-up
An MRI in late January 2013 disclosed that Plaintiff has “mild degenerative
disc disease” in his lower lumbar spine and has “mild disc bulge and facet hypertrophy
at L4-L5.” Id. at 420. The MRI also revealed “facet hypertrophy and disc bulge at
L5-S1.” Id. When Plaintiff returned to Reid Hospital for his follow up, he reported
continuing bilateral back pain that radiated into his left leg. A physical examination
by Jennifer Bales, MD, produced “a full range of motion of the extremities without
tenderness to palpation.” Id. at 364. Dr. Bales reviewed the MRI and concluded it
showed “no significant abnormalities. There is a mild disc protrusion, but nothing
significant, and there [are] some mild degenerative changes. No bony abnormalities.”
Id. Dr. Bales discontinued Plaintiff’s pain medication, noting that treatment with
ibuprofen is reasonable. She referred him to physical therapy. Id.
Plaintiff saw Nurse McDivitt for physical therapy. She examined Plaintiff and
reported that he appeared to have “more paraspinal tenderness in the bilateral
lumbosacral region.” Id. at 361. Palpation of his left sacroiliac regions revealed it was
“just very tender, sensitive to the touch, and almost caused him some vomiting.” Id.
He reported that he was nauseated and in a lot of pain. Bilateral-straight-leg testing
produced “some discomfort in his lower back…, but it was essentially a negative test.”
On February 6, 2013, Nurse McDivitt discharged Plaintiff from physical
therapy with instructions that he do no lifting over 5 pounds and no “bending, twisting,
turning, or driving in the company car. No overhead or below-the-waist work. He
may work in a sitting position or upright. Avoid twisting, bending, stooping, or
squatting with frequent breaks, and break up his change in position.” Id. She
prescribed prescription pain medication that would last about 2 weeks. She also
prescribed heat therapy every 2 to 3 hours for 48 hours, as needed.
Ravishankar Vedantam, MD, saw Plaintiff in consultation in February 2013.
After this consultation, Plaintiff followed up with Dr. Vedantam several times. Id. at
429-34. In March and April 2013, Dr. Vedantam reported that Plaintiff may return to
work, id. at 410, 413, with the following limitations: No ladders and scaffolds; no
jumping or running; no lifting over 15 pounds; no repetitive movements of his lumbar
spine; no pivoting; no twisting and bending of his lumbar spine. Id. at 411, 413. Dr.
Vedantam further believed that Plaintiff could engage in squatting, sedentary work,
prolonged standing, and other activities as tolerated. Id.
On June 4, 2013, Albert G. Singh, MD, treated Plaintiff with bilateral L4-L5
and L5-S1 facet joint injections. Id. at 374. Two weeks later, Plaintiff reported to Dr.
Singh that he had 20-30% improvement in his pain after the injections. Still, he
continued to have low-back pain but did not report radicular symptoms in his legs. Id.
at 436. On examination, Plaintiff was significantly tender over the sacroiliac joints
bilaterally. He had positive FABER, Patrick’s, and Gaenslen’s bilaterally. Id.
Plaintiff told Dr. Singh that prolonged sitting exacerbated his low-back pain. Id. at
435. Dr. Singh diagnosed Plaintiff with spinal stenosis of the lumbar region,
lumbosacral spondylosis, lumbar region sprain, and lumbago. Id. at 436.
In January 2014, Plaintiff went to the Wayne Hospital emergency department
due to 2 days of exacerbated back pain. He told them that he had muscle spasms and
that movement worsened his back pain, which was relieved by nothing. Id. at 443.
Upon examination, Plaintiff exhibited decreased range of motion, muscle spasm, and
vertebral point-tenderness of the lumbar spine. Id. at 444. He was diagnosed with
acute, chronic low-back pain.
On January 24, 2014, Nurse Arnett completed a medical source statement
regarding Plaintiff’s work abilities and limits. Id. at 423-24. Nurse Arnett opined that
Plaintiff could frequently lift and carry a maximum of less than 10 pounds. She also
believed that Plaintiff cannot stand or walk for even 2 hours in an 8-hour workday due
to his severe medical impairments and cannot even sit for 2 hours in an 8-hour
workday due to his severe medical impairments. She additionally concluded that
Plaintiff could only occasionally bend and could never twist, crouch, or climb stairs or
ladders due to his degenerative disc disease.
Plaintiff’s eligibility for Disability Insurance Benefits benefits turned on
whether he was under a “disability” as the Social Security Act narrowly defines it.
Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009); see 42 U.S.C. §
423(a)(1)(E). An individual’s health problems constitute social-security-eligible
disabilities only when their physical or mental impairments are of such severity that
they (1) cannot do their previous work, and (2) cannot, “considering their age,
education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy ….” 42 U.S.C. § 423(d)(2)(A).
As indicated previously, it fell to ALJ Grippo to evaluate the evidence and
determine whether Plaintiff was under a disability. He did so by considering each of
the five well-known sequential steps described by the regulations. See 20 C.F.R. §
404.1520(a)(4); see also Rabbers, 582 F.3d at 652.
Moving through some initial findings, the ALJ reached steps 2 and 3 where he
found that Plaintiff’s severe impairments—“degenerative disc disease, and
gastroesophagitis with focal area of ulceration”—did not automatically constitute
disabilities. (Doc. #6, PageID #50). At step 4, the ALJ assessed Plaintiff’s work
abilities as follows:1
[Plaintiff] has the residual functional capacity to perform light
work … except [he] can occasionally climb ladders, ropes and
scaffolds, and occasionally climb ramps and stairs. [He] is able to
frequently balance, kneel, and crouch. [He] can occasionally stoop
Id. at 50.
Plaintiff’s limited abilities, according to ALJ Grippo, prevented him from being
able to perform his past work as a warehouse manager but did not prevent him from
performing a significant number of available jobs, such as small products assembler,
labeler/marker, and desk clerk. Id. at 56-57. This meant he was not under a disability
and not entitled to benefits. Id.
The present review of ALJ Grippo’s decision determines whether he applied the
correct legal standards and whether substantial evidence supports his findings. Blakley
v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see Bowen v. Comm’r of
The Social Security Administration refers to what a person can do as his or her “residual functional
capacity.” See 20 C.F.R. § 404.1545(a); see also Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239
(6th Cir. 2002).
Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 2007). If he failed to apply the correct legal
criteria, his decision may be fatally flawed even if the record contains substantial
evidence supporting his findings. Rabbers, 582 F.3d at 651; see Bowen, 478 F.3d at
746; Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47 (6th Cir. 2004). Substantial
evidence supports a finding when “a ‘reasonable mind might accept the relevant
evidence as adequate to support a conclusion.’” Blakley, 581 F.3d at 407 (quoting
Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial
evidence consists of “more than a scintilla of evidence but less than a preponderance
....” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
Plaintiff argues that the ALJ completely failed to evaluate Nurse McDivitt’s
and Nurse Arnett’s opinions by not weighing their opinions under the regulatory
factors applicable to acceptable medical sources’ opinions. The regulatory factors
include, in part, the length of the treatment relationship, frequency of examination,
supportability, consistency, and specialization. 20 C.F.R. §§ 404.1527(c)(2)-(5).
The Commissioner contends that the ALJ reasonably placed little weight on
Nurse McDivitt’s and Nurse Arnett’s opinion because their status as non-acceptable
medical sources means that their opinions can never be given controlling or deferential
Nurse McDivitt’s status as Plaintiff’s physical therapist and a Family Nurse
Practitioner–Certified and Nurse Arnett’s status as a Certified Nurse Practitioner place
them on the category of “other sources” as opposed to “acceptable medical sources.”
See 20 C.F.R. §§ 404.1513(a), (d). Still, the ALJ was required to consider their
opinions. See Soc. Sec. Ruling 06-3p, 2006 WL 2329939, at *1 (Aug. 9, 2009) (citing
20 C.F.R. §§ 404.1512, 404.1527) (other citation omitted). The Commissioner,
through Ruling 06-03p, explains:
With the growth of managed health care in recent years and the
emphasis on containing medical costs, medical sources who are not
“acceptable medical sources,” such as nurse practitioners,
physician assistants, and licensed clinical social workers, have
increasingly assumed a greater percentage of the treatment and
evaluation functions previously handled primarily by physicians
and psychologists. Opinions from these medical sources, who are
not technically deemed “acceptable medical sources” under our
rules, are important and should be evaluated on key issues such as
impairment severity and functional effects, along with the other
relevant evidence in the file.
2006 WL 2329939, at *3. The factors applicable to acceptable medical sources “can
be applied to opinion evidence from ‘other sources.’” Id. at *4. ALJs “generally
should explain the weight given to opinions from these ‘other sources,’ or otherwise
ensure that the discussion of the evidence in the determination or decision allows a
claimant or subsequent reviewer to follow the adjudicator’s reasoning, when such
opinions may have an effect on the outcome of the case.” Id. at *6.
As ALJ Grippo properly recognized, accepting either Nurse McDivitt’s or
Nurse Arnett’s opinions about Plaintiff’s work limitations would mean he could do
less than the sedentary range of work. See Doc. #6, PageID #s 55, 361, 423-24. But,
the ALJ placed no weight on their opinions and, instead (as noted above), found that
Plaintiff could perform a limited range of light work. Id. at 50, 55. He rejected these
Nurses’ opinions in part because they are not acceptable medical sources. Id. at 55.
An ALJ’s rejection of a nurse practitioner’s opinion on the single ground that
he or she is not acceptable medical source is a questionable practice, particularly when
a non-acceptable medical source’s opinions may, in certain circumstances, outweigh a
treating source’s opinions. See Soc. Sec. R. 06-03p, 2006 WL 2329939, at *5; see
also Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 541 (6th Cir. 2007) (“the ALJ should
have discussed the factors relating to his treatment of nurse practitioner Hasselle’s
assessment, so as to provide some basis for why he rejected the opinion.”). Yet, in the
present case, the ALJ properly considered Nurse McDivitt’s and Nurse Arnett’s status
as non-acceptable medical sources as one among other reasons for rejecting their
The ALJ rejected Nurse McDivitt’s opinions because she gave them when
Plaintiff was discharged from Reid Hospital in February 2013 and her opinions
“appear to be temporary and precautionary in nature.” (Doc. #6, PageID #55). These
are valid reasons for rejecting Nurse McDivitt’s opinions, which appear in discharge
instructions she provided Plaintiff. Nothing in these instructions indicates that she
believed Plaintiff’s limitations would last longer than 12 months or were permanent.
Id. Her instructions, moreover, can be reasonably read as precautionary because the
limitations directly correlate with the goal of minimizing Plaintiff’s back pain or
aggravating his back injury. This is seen, for example, in her instruction “to do no
lifting over 5 pounds; bending, twisting, or turning; or driving the company car.” Id.
at 361. Plaintiff, moreover, had only seen Nurse McDivitt twice at the time she
discharged him from physical therapy. (Doc. #6, PageID #s 360-61). As a result, she
did not have a long-term or frequent treatment relationship with him.
The ALJ’s evaluation of Nurse Arnett’s opinions is less than precise and less
than what a well-reasoned decision should contain. The ALJ rejected Nurse Arnett’s
opinions because her statement is “incomplete and she answered ’unknown’ to several
questions.” Id. Nurse Arnett completed the form by answering each question. Id. at
423-24. Although she answered “unknown” to 2 questions (not several questions), this
does not mean she failed to complete the form. And, her acknowledgment that she did
not know the answers to 2 questions tends to show genuineness and honesty rather
than exaggeration or bias in Plaintiff’s favor. These problems with the ALJ’s
reasoning are not fatal to his decision because they are de minimis errors in light of the
obvious shortcomings Nurse Arnett’s opinions contain.
Other than citing Plaintiff’s diagnoses, Nurse Arnett did not provide any
clinical findings or diagnostic test results that support the limitations she thought
Plaintiff had. See id. at 423-24. A diagnosis alone sheds no light on the severity of an
impairment or whether it constitutes a disability. See Higgs v. Bowen, 880 F.2d 860,
863 (6th Cir. 1988); see also Carpenter v. Comm’r of Soc. Sec., No. 3:16 CV 720,
2017 WL 1038913, at *11 (N.D. Ohio Mar. 17, 2017) (“[D]iagnosis of a condition
alone does not necessarily make the condition severe.”). Nurse Arnett provided no
meaningful explanation in support of her opinions. She merely circled responses and
listed diagnoses, but did not explain why, for example, Plaintiff could only stand 5
minutes at a time, as opposed to 20 or 30 or 60 minutes. (Doc. #6, PageID #s 42311
424). These were prominent omissions. See 20 C.F.R. § 404.1527(c)(3) (“The more a
medical source presents relevant evidence to support a medical opinion, particularly
medical signs and laboratory findings, the more weight we will give that medical
opinion. The better an explanation a source provides for a medical opinion, the more
weight we will give that medical opinion.”). Similarly, Nurse Arnett checked boxes
indicating that Plaintiff would have limitations in fingering, handling, and feeling, but
she did not provide any explanations or reference to supporting medical evidence for
these restrictions. At least some explanation was needed given the lack of evidence
that Plaintiff ever reported an issue with his hands. And, conclusory restrictions such
as these carry little significance for social security purposes. See Buxton v. Halter, 246
F.3d 762, 773 (6th Cir. 2001) (“[T]he ALJ is not bound by conclusory statements of
doctors, particularly where they are unsupported by detailed objective criteria and
documentation.”) (internal quotation marks omitted).
Steering in a different direction, Plaintiff argues that the ALJ failed to satisfy
his duty to fully and fairly develop the record because he did not obtain medical
records from the Preble County Medical Center, where Plaintiff saw Nurse Arnett for
treatment. Plaintiff also points out that the ALJ requested a copy of his workers
ALJs have a statutory duty “to fully develop the record.” Lashley v. Sec’y of
HHS, 708 F.2d 1048, 1051 (6th Cir. 1983). This duty exists regardless of whether the
claimant is represented by counsel or proceeds pro se. See Gibson v. Comm’r of Soc.
Sec., No. 1:13cv069, 2014 WL 619135 at *5 (S.D. Ohio 2014) (Litkovitz, MJ) (and
cases cited therein), Report and Recommendations adopted, 2014 WL 1096132 (S.D.
Ohio 2014) (Dlott, CJ).
The ALJ did not fail to satisfy his duty in the present case. In response to
Plaintiff’s counsel’s request, the ALJ granted him 30 days to obtain and submit
Plaintiff’s records from the Preble County Medical Center and his workers
compensation file. (Doc. #6, PageID #s 66, 86). Plaintiff does not point out, and there
is no indication in the record, that his counsel sought an extension of the 30-day
deadline or otherwise informed the ALJ that he was having trouble obtaining the
records and, therefore, needed a subpoena. In these circumstances, it was reasonable
for the ALJ to believe that Plaintiff’s counsel would submit the records on time or seek
a subpoena. As a result, the ALJ did not violate his duty to compile a full and fair
Accordingly, Plaintiff’s challenges to the ALJ’s review of Nurse McDivitt’s
and Nurse Arnett’s opinions, and his challenges to the ALJ’s compilation of the
record, lack merit.
Plaintiff argues that the ALJ improperly evaluated Plaintiff’s credibility by
relying on his unsuccessful work attempt after his disability onset date. He asserts that
his attempt to work despite his back pain supports his credibility. He also contends
that his reports of pain should have been given great weight as he has continuously
searched for pain relief.
“In evaluating complaints of pain, an ALJ may properly consider the credibility
of the claimant.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997)
(citation omitted). An ALJ’s credibility findings “are to be accorded great weight and
deference, particularly since an ALJ is charged with the duty of observing a witness’s
demeanor and credibility. Nevertheless, an ALJ’s assessment of a claimant’s
credibility must be supported by substantial evidence.” Id. (citations omitted).
The ALJ discussed Plaintiff’s testimony regarding the frequency and intensity
of his symptoms, his medications and side effects, and his treatment history.
Substantial evidence supports his findings. The ALJ reasonably observed that Plaintiff
“has not generally received the type of medical treatment one would expect for a
disabled individual.” (Doc. #6, PageID #52). Just weeks after his injury, the doctor
would not prescribe pain medication and instead told him to take over-the-counter
Ibuprofen. Id. at 364. In February 6 2013, Nurse McDivitt noted that Plaintiff
reported “he was riding in a truck this past week, getting in and out of the truck like 40
times, which I do believe is an aggravating factor.” Id. at 360. This amount of activity
tends to support the ALJ’s credibility conclusion. In addition, Ibuprofen and hot
showers helped to relieve his pain, id., a further indication that Plaintiff was not in
significantly debilitating pain. In April 2013, Dr. Vedantam wrote that Plaintiff “may
continue with nonoperative modalities of treatment” and should engage in “activity
modification, taking over-the-counter anti-inflammatory and analgesic medications,
range of motion exercises for the lumbar spine and use … the lumbar belt when doing
any physical work,” and “he may also use … a heating pad as needed.” Id. at 410.
Treatment notes in March 2014 state, “TENS [unit] is effective in reducing pain.” Id.
at 476. In August 2014, Scott West, DO, reported that Plaintiff “should continue with
conservative care and pain management.” Id. at 54-55, 490.
The substantial evidence supporting the ALJ’s credibility conclusion also
consists of records showing that just 20 days after his work injury a physician noted
that he was able to “move about the room easily without difficulty,” and he had “full
range of motion of the extremities without tenderness to palpation.” Id. at 364. This
physician further reported, “Review of the MRI the reveals no significant
abnormalities. There is a mild disk protrusion, but nothing significant, and there [are]
some mild degenerative changes.” Id. at 364 (referring to MRI, id. at 391). The next
month, his lower extremity strength was 5/5 bilaterally, reflexes were normal, he had
an “essentially negative” straight leg raise test, no pain going down the leg, and
“[o]therwise, he ha[d] full range of motion of his extremities without tenderness.” Id.
at 361. By September 2013, Plaintiff was not in distress, had a normal gait, normal
coordination, and normal reflexes, negative straight-leg-raise and Faber tests
bilaterally, normal strength and tone, full range of motion, and no focal neurologic
deficit. Id. at 469. In August 2014, Dr. West noted that Plaintiff’s MRI failed “to
demonstrate any significant disc herniations. He did have some left facet joint
hypertrophy but this was only causing minimal foraminal stenosis at the LS-S1 level
on the left.” Id. at 490.
Accordingly, substantial evidence supports the ALJ’s credibility findings.
Plaintiff contends that the ALJ failed to prove that there are a sufficient number
of jobs available in the national economy for an employee with his residual functional
The ALJ adopted the vocational expert’s testimony at step 5 of his sequential
analysis and found that a person with Plaintiff’s residual functional capacity, age,
education, and work experience could work as a small parts assembler, a label/marker,
and a desk clerk. The vocational expert testified that he used the Dictionary of
Occupational Titles (the DOT) to classify these jobs. Id. at 94. And, the ALJ
recognized, based on the vocational expert’s testimony, that a significant number of
such jobs exist nationally, specifically: 175,000 small parts assembler jobs; 210,000
label/marker jobs; and, 229,000 desk clerk jobs. Id. at 56-57. These findings led the
ALJ to conclude that a significant number of jobs exist in the national economy that
Plaintiff can perform. Id.
To the extent the vocational expert was asked about limitations the DOT does
not address (need to change positions, absenteeism, etc.), the vocational expert
explained that he based his answers “on over 35 years of experience as a certified
rehabilitation counselor and … [his] experience in counselor education and
rehabilitation counselors over 27 years.” Id. at 95-96.
In addition, the following brief colloquy occurred during counsel’s questioning:
Q. Okay. Prior to the hearing did you prepare any list of
sedentary, light and medium jobs to pick from based upon
A. [vocational expert] I have references based on studying job data
from the Bureau of Labor Statistics, that’s correct.
Id. at 91.
Plaintiff contends that the vocational expert did not meaningfully explain his
methodology. Meaningful explanation was needed here, according to Plaintiff,
because the vocational expert relied on job data from the Bureau of Labor Statistics,
which no longer uses the DOT. Counsel, however, did not ask the vocational expert to
explain his methodology or his reliance on job data from the Bureau of Labor
Statistics. The ALJ was not required to do so sua sponte. Cf. Ledford v. Astrue, 311
F. App’x 746, 757 (6th Cir. 2008) (“nothing in applicable Social Security regulations
requires the administrative law judge to conduct his or her own investigation into the
testimony of a vocational expert to determine its accuracy….”) (citing Martin v.
Comm’r of Soc. Sec., 170 F. App’x 369, 374-75 (6th Cir. 2006)).
There was, however, discussion between counsel and the ALJ at the start of the
hearing about the vocational expert and the DOT.2 During this discussion, counsel did
not object to the vocational expert’s qualifications; he instead argued that the ALJ
should discard the DOT “because it is so outdated” and reliance on it would constitute
error. Id. at 69. The ALJ countered that the regulations obliged him to refer to the
DOT and that he had no authority to discard it. Id. at 69-70. Counsel acknowledged
Counsel also raised the issue in a post-hearing brief. Id.
that he understood this and expressed his belief that “this would be an issue for
appeal.” Id. at 70. And here we are.
The Social Security Administration takes administrative notice of the
information provided by various governmental sources, including the DOT and other
publications. 20 C.F.R. § 404.1566(d). Because of this, the ALJ did not err by
accepting the vocational expert’s testimony about the DOT’s job classifications. See
id. Additionally, “while the ALJ may take judicial notice of the classification in the
[DOT], the ALJ may accept testimony of a vocational expert that is different from
information in the [DOT].” Conn v. Sec’y of HHS, 51 F.3d 607, 610 (6th Cir. 1995).
The vocational expert in this case confirmed that his testimony was consistent with the
DOT’s classifications. He also explained that the jobs he identified did not require
work abilities above the limitations in the ALJ’s hypotheticals. (Doc. #6, PageID
#95). The vocational expert further stated that if a job he identified was performed at a
different level than the DOT describes, he would inform the ALJ. And, to the extent
the DOT did not address certain job limitations a person might have, the vocational
expert based his testimony on his many years of experience. Id. at 95-96. Given these
reassurances by the vocational expert, the ALJ did not err in relying on the job
classifications the vocational expert identified.
This leads to Plaintiff’s main line of thinking. The DOT classifies and defines
jobs. It does not say how many of each (or any) job is available in the national
economy. The vocational expert connected the DOT’s job descriptions with the
number of such available jobs as reported by the Bureau of Labor Statistics–even
though the Bureau no longer uses the DOT. Plaintiff maintains that there is currently
no government data regarding the number of jobs available in the national economy
based on the DOT codes. In other words, Plaintiff says, “Just because there is a job
title in the DOT does not mean that there are a significant number of those jobs
available in the national economy.” (Doc. #10, PageID #551).
Plaintiff’s contentions might well win the day if social security law required
ALJs to reject the DOT or explore the validity of the vocational expert’s testimony
under a Daubert-like3 analysis. But a Daubert-like analysis is not required in social
security cases. Brault v. Comm’r of Soc. Sec., 683 F.3d 443, 451 n.2 (7th Cir. 2012).
This borders on self-evident because social security hearings “are inquisitorial rather
than adversarial,” Sims v. Apfel, 530 U.S. 103, 110-11 (2000), and because the Federal
Rules of Evidence do not apply during these administrative hearings. Schuler v.
Comm’r of Soc. Sec., 109 F. App’x 97, 102 (6th Cir. 2004) (citing Cline v. Secretary of
Health, 444 F.2d 289, 291 (6th Cir.1971)). And when, as here, the ALJ did not err in
accepting the DOT job classifications and the vocational expert relied on his own vast
vocational-work experience to consider the differences between the DOT
classifications and the ALJ’s hypotheticals, it was reasonable for the ALJ to accept the
vocational expert’s job numbers without probing his method of matching the job
classifications he adopted with the Bureau of Labor Statistic’s job numbers. See
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Liskowitz v. Astrue, 559 F.3d 736, 743 (7th Cir. 2009) (“Perhaps ideally the VE
[vocational expert] would have been able to say a bit more, but this does not go
without saying. The witness was testifying as a vocational expert, not as a census
taker or statistician. Indeed, even if the VE had happened to know something about
the statistical basis for her testimony, she arguably still would not be in a position to
fully vindicate her conclusions.”); cf. Taylor v. Comm’r of Soc. Sec., __F. App’x__,
2017 WL 2927483, at *8 (W.D. Mich. 2017) (“if we required a VE to produce job
statistics specific to the DOT-coded occupations a claimant can perform, it is unlikely
that the Commissioner would ever succeed in satisfying her burden. This cannot be the
result the regulations intend. Indeed, that the data [the claimant] requests does not exist
‘is a sign that [the claimant] expects too much,’ and like the Seventh Circuit, we
decline to ‘impose impossible burdens on the VE.’”) (quoting Guiton v. Colvin, 546 F.
App’x 137, 142-43 (4th Cir. 2013)).
For the above reasons, Plaintiff’s challenges to the ALJ’s findings at step 5 of
his sequential evaluation lack merit.
IT IS THEREFORE ORDERED THAT:
The Commissioner’s non-disability finding is affirmed; and
The case is terminated on the Court’s docket.
September 21, 2017
s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge
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